Godon v. McClure

• Decision Date: 07 November 1947
• Citation: 322 Mass. 1,75 N.E.2d 656
• Parties: GEORGE J. GODON v. ARTHUR N. MCCLURE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 1

75 N.E.2d 656

GEORGE J. GODON v. ARTHUR N. MCCLURE.

Supreme Judicial Court of Massachusetts, Worcester.

November 7, 1947

September 22, 1947.

Present: QUA, C.

J., LUMMUS, DOLAN RONAN, & WILKINS, JJ.

Negligence Employer's liability: appliance, assumption of risk. Contract, Of employment.

Evidence, that when a painter not insured under the workmen's compensation act hired a certain employee, a gasoline torch furnished to him for use in burning off paint was in good condition and that subsequently it became worn, leaky and dangerous and continued to be in that defective condition for a substantial period until it finally caught fire and caused injury to the employee in 1940, warranted findings that the employee did not contractually assume the risk of injury from using the torch in its defective condition and that his injury was due to negligence of the employer.

A finding, that employment of an employee by a painting contractor was continuous from the time when he was hired in September 1938, until a time in June, 1940, when he was injured while at work, was warranted by evidence that the employer's business was of a seasonal nature, that he let employees go when there was no work and took "what he . . . [could] get" when work picked up, and liked to have a steady group of workmen on whom he could call as he needed them; and that in December of both 1938 and 1939, when work was slack, the employee was laid off until the following spring and resumed work for the employer at the same duties and pay in March or April, 1939, and again early in June, 1940.

TORT. Writ in the Superior Court dated March 28, 1941. The action was tried before Dowd, J.

Nicholas Fusaro & Nunziato Fusaro, for the defendant, submitted a brief.

F. X. Reilly, Jr., (J.

A. Crotty with him,) for the plaintiff.

DOLAN, J. This is an action of tort to recover compensation for personal injuries alleged to have been sustained as a result of the defendant's negligence. The case comes before us on the defendant's exceptions to the denial by the judge of his motion for a directed verdict, and of his motion for entry of a verdict for him under leave reserved by the judge, the jury having returned a verdict for the plaintiff.

The evidence would have warranted the jury in finding the following facts: The defendant was a painting contractor. The plaintiff first went to work for him late in September, 1938. The plaintiff's duties consisted in burning paint off buildings by means of an apparatus which had been "acquired brand new" by the defendant in September, 1938. The equipment was made up of a tank containing gasoline to which was attached at its top a "T." Two rubber hoses each about twenty-five feet in length were connected to the "T." A gasoline torch or "gun" was attached to each hose. To start a gun burning, air was pumped into the tank to put the gasoline under pressure and force it to the nozzle of the gun. Alcohol was poured on a plate, ignited with a match, and allowed to burn near the nozzle of the gun. When the gasoline was vaporized, a shutoff valve on the handle of the gun was opened and the gasoline burned at the nozzle. There was a wheel on the gun to regulate the flame. When not in use the guns would be placed upon the tank where they were held by slots. When the plaintiff started to work for the defendant in September, 1938, the equipment was in good order. Two or three weeks later one of the guns, which another employee was operating, started to leak gasoline and caught fire. This was reported on the day of its happening to the defendant. At that time the gun that was being used by the plaintiff was in "pretty bad shape." In the last part of December 1938, the defendant told the plaintiff that the work was getting slack, that he was laying him off until springtime "till the work picked up again," and that he would inform the plaintiff when to go back to work for him again. In March or April, 1939, the plaintiff went back to work for the defendant and continued in his employ until December, 1939. The work was "getting slack again" and the plaintiff was laid off until "the following spring." He went to work again for the defendant on June 4, 1940. On June 6 and 7 he was engaged in burning paint off a building, using the equipment before described. He could see that the lining of the tubing and the shutoff valve of the gun that he was using were leaking. Gasoline was leaking all day long from the valve and the hose "right up to the time of the accident." He knew at the time that the guns were dangerous to use. On June 6 another employee told the defendant that the old equipment was so dangerous that he would not touch it, that he would not work on the guns any more because they were "too worn out and leaking." On June 7 the plaintiff was standing about twelve feet from the ground on a ladder rigging staging on the building. The two guns were on the tank, one hanging on each side. The flame of each was "going." The ladder was about six feet from the tank. The plaintiff heard a "puff" on the tank, and looked down. Everything was on fire all over the top of the tank. The flames were around the bottom of the ladder and of the building. The smoke and heat were so strong that he had to jump down from the ladder and as a result sustained personal injuries. There was also evidence that the plaintiff did not shut off the "gas" although he reduced the flame when he placed his gun on the tank, that he could have shut off the "gas if he wanted to" but that "we [the employees] never done it." The plaintiff's duties and pay rate were identical when he worked for the defendant in 1938, 1939 and 1940. The jury could also have found that painting is a seasonal business; that the busiest time is in the spring and summer; that when he does not have work the defendant has to let employees go; that when the work picks up he takes "what he can get"; that he does not exactly summon back employees whom he has let go but he likes to have a steady group of good workmen on whom he can call when he needs them; that the plaintiff was a good workman; and that during the winter the defendant gets down to a skeleton force.

The defendant was not insured under the workmen's compensation act. It follows that the defences of contributory negligence on the part of the plaintiff and voluntary assumption of the risk resulting in his injury were not open to the defendant. G. L. (Ter. Ed.) c. 152, Section 66. Cronan v. Armitage, 285 Mass. 520 , 524, 527. Neiss v. Burwen, 287 Mass. 82 , 89. Eckstein v. Scoffi, 299 Mass. 573 , 575. The defence, however, of contractual assumption of the risk by the plaintiff was open to the defendant because St. 1943, c. 529, Section 9A, taking away that defence from employers not insured under the workmen's compensation act, was not enacted until June 12, 1943, to be effective as of November 15, 1943. Taylor v. Newcomb Baking Co. 317 Mass. 609 , 610. Maciejewski v. Graton & Knight Co. 321 Mass. 165 , 167. Winchester v. Solomon, post, 7, 10.

It is settled that it is the duty of an employer to provide to an employee reasonably safe and suitable tools and equipment with which to do his work. McPhail v. Boston & Maine Railroad, 280 Mass. 113 , 118. Eckstein v. Scoffi, 299 Mass. 573 575. Novash v. Crompton & Knowles Loom Works, 304 Mass. 244, 247. Roberts v. Frank's Inc. 314 Mass. 42 , 45. But in the present case this...